Juvenile transfers to adult court: A lingering outcome of the super-predator craze

Twenty years ago, in a speech at Keene State College in New Hampshire, then-First Lady Hillary Clinton made a comment about juvenile crime. Discussing the need for a top-level fight against gangs that harkened the mob-busting of previous decades, Clinton told reporters that “they are not just gangs of kids anymore.”

“They are often the kinds of kids that are called ‘super-predators,’ ” Clinton continued. “No conscience, no empathy; we can talk about why they ended up that way, but first we have to bring them to heel.”

The term super-predator was coined by author John DiIulio in a book that foresaw an America done in by child armies. From “Moral Poverty – and How to Win America’s War Against Crime and Drugs”:

“America is now home to thickening ranks of juvenile ‘super-predators’ – radically impulsive, brutally remorseless youngsters, including ever more pre-teenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs and create serious communal disorders. They do not fear the stigma of arrest, the pains of imprisonment or the pangs of conscience … At core the problem is that most inner-city children grow up surrounded by teenagers and adults who are themselves deviant, delinquent and criminal.”

DiIulio’s prose was based largely on the predictions of researcher James Alan Fox, who had forecasted a “bloodbath of teenage violence” coming in the 1990s and beyond.

None of the super-predator/bloodbath stuff turned out to be true, of course. Juvenile crime, and specifically violent crime, plummeted in the United States after the racially tinged prognostications of the time.

DiIulio, who would go on to lead the newly established Office of Faith-Based and Community Initiatives for George W. Bush, had publicly disavowed the super-predator comment by 2001. Fox pretty much immediately backed off his comments, conceding in a 1996 USA Todaycolumn that “I never meant there would be a blood bath. Some of it was part of getting people’s attention.”

Clinton was publicly mum on the topic for 20 years until this year’s presidential primaries, when a young protestor disrupted a fundraiser to challenge on the subject. Clinton responded in a statement to The Washington Post the next day:

“Looking back, I shouldn’t have used those words, and I wouldn’t use them today. My life’s work has been about lifting up children and young people who’ve been let down by the system or by society, kids who never got the chance they deserved. And unfortunately today, there are way too many of those kids, especially in African-American communities. We haven’t done right by them. We need to.”

In the years since the super-predator forecast, some of the harshest punishments handed down to juveniles have been rolled back. Since 2007, the U.S. Supreme Court has separately ruled the following things to be unconstitutional:

Death penalty for juveniles.

Juveniles getting life without parole for any crime other than a homicide.

Juveniles automatically getting life without parole under any state sentencing guideline.

In addition, several states have reconsidered their age of jurisdiction. Massachusetts and Illinois no longer consider 17-year-olds to be adults in the eyes of the law; Connecticut used to consider 16- and 17-year-olds to be adults.

But if Clinton is elected and feels the need to atone for her contribution to the super-predator fiasco, she might take an interest in the largest facilitator of adult crime for adult time: transfer policies, the ways in which counties and states shift a juvenile offender into adult court after arrest.

There are a few basic policies used for transfers of juvenile offenders into the adult system:

Direct file: Prosecutors have the discretion, on certain specified crimes, to begin a juvenile’s case in adult court.

Judicial waiver: The judge has the discretion to move a case into adult court.

Automatic: Established law or policy calls for instantaneous transfer for a certain threshold of offenses.

Once an adult: Rules that mandate a transfer to adult court for any crime if the juvenile has been transferred before.

It would be unfair to lay transfer laws wholly at the doorstep of the super-predator craze. Florida, which transfers more juveniles to adult court than any state, has permitted direct files by prosecutors since the 1970s.

But as the party platforms from the 1996 presidential race suggest, there was a particular zeal for the promotion of these policies at the time.

From the G.O.P.’s 1996 platform:

“We will stress accountability at every step in the system and require adult trials for juveniles who commit adult crimes.”

From the Democrats’ 1996 platform:

“When young people cross the line, they must be punished. When young people commit serious violent crimes, they should be prosecuted like adults.”

A more accurate description would be that the super-predator craze did two things. First, it validated the increase in transfer permissions that immediately preceded. Between 1992 and 1995, 41 states adopted or expanded laws in a way that facilitated more transfers of juveniles.

Second, it facilitated further elimination of transfer restrictions that opened up adult court as a possibility for younger juveniles, or juveniles accused of lesser offenses.

The use of transfers varies widely from state to state. But every state has at least one way to transfer juveniles into adult court. And few states have changed their policies about transfers in the years since the super-predator craze, even as national juvenile justice advocacy groups have focused attention on the subject.

There is growing recognition that the incarceration of juvenile offenders in adult settings is a bad idea. A 2008 paper published by the U.S. Department of Justice found that juveniles were more likely to reoffend after being sent to adult facilities than those sent to juvenile facilities.

But incarceration is just one end result of a juvenile case getting transferred to adult court. Others include case dismissal, acquittal, time served, probation and, in some states, a reversal of the case back to juvenile court by a judge.

And decades after transfer laws were stepped up, we know very little about their impact other than that the juveniles who get jailed or imprisoned with adults do worse than similar offenders housed in the juvenile system. The fate of juveniles transferred to adult court is one of the biggest blind spots in what we know about youth who come into contact with either family or criminal court.

After years of delays, a federal study on the subject funded back in 2010 appears to be near completion, though Youth Services Insider has heard that some states are being less than helpful in the collection of information for it. We were told that at least some numbers would come out in 2016; our guess is that you’ll see them after the election.